Lawyers seek removal of death penalty

Anthony Belton, 24, is charged with one count of aggravated murder and two counts of aggravated robbery, all with gun specifications, in the death of Matthew Dugan, 34, a clerk the former BP station at Dorr Street and Secor Road. Mr. Dugan was shot once in the back of the head during a robbery.

Using more than a decade's worth of data on aggravated murder cases in Lucas County, defense attorneys for a man charged in the 2008 shooting death of a BP convenience store clerk are hoping to show disparity in the way indictments are filed in capital cases.

Anthony Belton's attorneys filed a motion in Lucas County Common Pleas Court yesterday asking Judge Ruth Ann Franks to dismiss the capital specifications attached to his case. Mr. Belton, 24, of 934 Cuthbert Rd. is charged with one count of aggravated murder and two counts of aggravated robbery, all with gun specifications. If convicted, he faces the death penalty.

Monday, attorney Pete Rost said he wants the state to answer why Mr. Belton was indicted on a death-penalty count when similar cases were not. Judge Franks set an April 7 hearing to potentially hear evidence on the motion.

“There have been cases in Lucas County presented to the grand jury, and the grand jury has returned indictment charges on crimes that would have been capital cases based on the facts, but for whatever the reason, they weren't charged that way,” Mr. Rost said.

“We're alleging everyone should be treated equally,” he added. “If there are reasons that some were indicted and some were not, we need to know why to determine if Mr. Belton's constitutional rights [to equal protection] were violated.”

Dean Mandros, chief of the criminal division of the prosecutor's office, said assistant prosecutors will wait to receive information from the defense before deciding how to proceed.

Mr. Belton is accused of shooting Matthew Dugan, 34, once in the back of the head during an Aug. 13, 2008, robbery at the former BP gas station at Dorr Street and Secor Road. According to police, the suspect entered the convenience store about 7 a.m., approached the counter, pulled out a gun, and demanded money.

Police reports say the gunman shot Mr. Dugan after the clerk turned around in response to an order to retrieve telephone cards from behind the counter.

A June 7 trial date has been scheduled.

In Ohio, if a defendant is found guilty of aggravated murder with death-penalty specifications, there is then a second phase of the trial. During the sentencing phase, the defense is able to present mitigating factors. If the circumstances of the crime — specifically, the circumstances that make it a death-penalty case — outweigh the mitigating factors, then a defendant may be sentenced to death.

It is this second phase that defense attorneys hope to affect with yesterday's motion.

“In [this] case, Anthony Belton has been indicted for aggravated murder with accompanying specifications which, if established, a sentence of death can be imposed,” the motion said. “In contrast, there are others who have been similarly situated and were not exposed to such an irrevocable penalty.”

Mr. Mandros said that many factors are reviewed when deciding how to file an indictment, including the nature and reliability of the evidence and the presence of obvious mitigating factors.

“We do not put death specs on everyone who is technically eligible to receive death specifications,” he said. “The overall framework which we utilize when we consider death specification is whether this defendant is one of the worst type of offenders and/or whether this offense is one of the worst type of offenses.”

One of the issues the defense will explore is if race has come into play when indicting on death penalty cases, Mr. Rost said. He said that other issues would be examined as well, such as apparent discrimination based on gender and class.

Mr. Belton is black and Mr. Dugan was white.

Another capital case pending in Lucas County involves the beating deaths of an elderly couple in their Mulberry Street home. Edgar Howard, 48, who is black, is charged with two counts of aggravated murder and one count of aggravated robbery for the May 1 incident. The victims were white.

No trial date has been set. The case is pending before Judge Gary Cook.

Most recently sent to death row from Lucas County was Wayne Powell, who was sentenced to death on Sept. 13, 2007, after being found guilty of setting a house fire that killed four people — an ex-girlfriend, her disabled mother, and two children, ages 4 and 2.

In that case, both the defendant and the victims were black.

Mr. Rost said the defense will examine aggravated murder cases that date back to 1996. If they are able to prove that disparities exist, then the prosecutor's office would have to articulate “race/gender/socio-economic-neutral reasons” for the decision to either add or leave out death specifications, Mr. Mandros said.